U.S.A. Copyright Law, Library of Congress. Copyright Office [reading diary TXT] 📗

>of the Office. Such registration, together with the certificate, shall

thereafter have the same effect as if it had been originally issued in

such corrected form.

Section 1320. Ownership and transfer [5]

(a) Property Right in Design. The property right in a design subject to

protection under this chapter shall vest in the designer, the legal

representatives of a deceased designer or of one under legal incapacity,

the employer for whom the designer created the design in the case of a

design made within the regular scope of the designer's employment, or a

person to whom the rights of the designer or of such employer have been

transferred. The person in whom the property right is vested shall be

considered the owner of the design.

(b) Transfer of Property Right. The property right in a registered

design, or a design for which an application for registration has been

or may be filed, may be assigned, granted, conveyed, or mortgaged by an

instrument in writing, signed by the owner, or may be bequeathed by

will.

(c) Oath or Acknowledgment of Transfer. An oath or acknowledgment under

section 1312 shall be prima facie evidence of the execution of an

assignment, grant, conveyance, or mortgage under subsection (b).

(d) Recordation of Transfer. An assignment, grant, conveyance, or

mortgage under subsection (b) shall be void as against any subsequent

purchaser or mortgagee for a valuable consideration, unless it is

recorded in the Office of the Administrator within 3 months after its

date of execution or before the date of such subsequent purchase or

mortgage.

Section 1321. Remedy for infringement

(a) In General. The owner of a design is entitled, after issuance of a

certificate of registration of the design under this chapter, to

institute an action for any infringement of the design.

(b) Review of Refusal To Register. (1) Subject to paragraph (2), the

owner of a design may seek judicial review of a final refusal of the

Administrator to register the design under this chapter by bringing a

civil action, and may in the same action, if the court adjudges the

design subject to protection under this chapter, enforce the rights in

that design under this chapter.

(2) The owner of a design may seek judicial review under this section

if-

(A) the owner has previously duly filed and prosecuted to final refusal

an application in proper form for registration of the design;

(B) the owner causes a copy of the complaint in the action to be

delivered to the Administrator within 10 days after the commencement of

the action; and

(C) the defendant has committed acts in respect to the design which

would constitute infringement with respect to a design protected under

this chapter.

(c) Administrator as Party to Action. The Administrator may, at the

Administrator's option, become a party to the action with respect to the

issue of registrability of the design claim by entering an appearance

within 60 days after being served with the complaint, but the failure of

the Administrator to become a party shall not deprive the court of

jurisdiction to determine that issue.

(d) Use of Arbitration To Resolve Dispute. The parties to an

infringement dispute under this chapter, within such time as may be

specified by the Administrator by regulation, may determine the dispute,

or any aspect of the dispute, by arbitration. Arbitration shall be

governed by title 9. The parties shall give notice of any arbitration

award to the Administrator, and such award shall, as between the parties

to the arbitration, be dispositive of the issues to which it relates.

The arbitration award shall be unenforceable until such notice is given.

Nothing in this subsection shall preclude the Administrator from

determining whether a design is subject to registration in a

cancellation proceeding under section 1313(c).

Section 1322. Injunctions

(a) In General. A court having jurisdiction over actions under this

chapter may grant injunctions in accordance with the principles of

equity to prevent infringement of a design under this chapter,

including, in its discretion, prompt relief by temporary restraining

orders and preliminary injunctions.

(b) Damages for Injunctive Relief Wrongfully Obtained. A seller or

distributor who suffers damage by reason of injunctive relief wrongfully

obtained under this section has a cause of action against the applicant

for such injunctive relief and may recover such relief as may be

appropriate, including damages for lost profits, cost of materials, loss

of good will, and punitive damages in instances where the injunctive

relief was sought in bad faith, and, unless the court finds extenuating

circumstances, reasonable attorney's fees.

Section 1323. Recovery for infringement

(a) Damages. Upon a finding for the claimant in an action for

infringement under this chapter, the court shall award the claimant

damages adequate to compensate for the infringement. In addition, the

court may increase the damages to such amount, not exceeding $50,000 or

$1 per copy, whichever is greater, as the court determines to be just.

The damages awarded shall constitute compensation and not a penalty. The

court may receive expert testimony as an aid to the determination of

damages.

(b) Infringer's Profits. As an alternative to the remedies provided in

subsection (a), the court may award the claimant the infringer's profits

resulting from the sale of the copies if the court finds that the

infringer's sales are reasonably related to the use of the claimant's

design. In such a case, the claimant shall be required to prove only the

amount of the infringer's sales and the infringer shall be required to

prove its expenses against such sales.

(c) Statute of Limitations. No recovery under subsection (a) or (b)

shall be had for any infringement committed more than 3 years before the

date on which the complaint is filed.

(d) Attorney's Fees. In an action for infringement under this chapter,

the court may award reasonable attorney's fees to the prevailing party.

(e) Disposition of Infringing and Other Articles. The court may order

that all infringing articles, and any plates, molds, patterns, models,

or other means specifically adapted for making the articles, be

delivered up for destruction or other disposition as the court may

direct.

Section 1324. Power of court over registration

In any action involving the protection of a design under this chapter,

the court, when appropriate, may order registration of a design under

this chapter or the cancellation of such a registration. Any such order

shall be certified by the court to the Administrator, who shall make an

appropriate entry upon the record.

Section 1325. Liability for action on registration fraudulently obtained

Any person who brings an action for infringement knowing that

registration of the design was obtained by a false or fraudulent

representation materially affecting the rights under this chapter, shall

be liable in the sum of $10,000, or such part of that amount as the

court may determine. That amount shall be to compensate the defendant

and shall be charged against the plaintiff and paid to the defendant, in

addition to such costs and attorney's fees of the defendant as may be

assessed by the court.

Section 1326. Penalty for false marking

(a) In General. Whoever, for the purpose of deceiving the public, marks

upon, applies to, or uses in advertising in connection with an article

made, used, distributed, or sold, a design which is not protected under

this chapter, a design notice specified in section 1306, or any other

words or symbols importing that the design is protected under this

chapter, knowing that the design is not so protected, shall pay a civil

fine of not more than $500 for each such offense.

(b) Suit by Private Persons. Any person may sue for the penalty

established by subsection (a), in which event one-half of the penalty

shall be awarded to the person suing and the remainder shall be awarded

to the United States.

Section 1327. Penalty for false representation

Whoever knowingly makes a false representation materially affecting the

rights obtainable under this chapter for the purpose of obtaining

registration of a design under this chapter shall pay a penalty of not

less than $500 and not more than $1,000, and any rights or privileges

that individual may have in the design under this chapter shall be

forfeited.

Section 1328. Enforcement by Treasury and Postal Service

(a) Regulations. The Secretary of the Treasury and the United States

Postal Service shall separately or jointly issue regulations for the

enforcement of the rights set forth in section 1308 with respect to

importation. Such regulations may require, as a condition for the

exclusion of articles from the United States, that the person seeking

exclusion take any one or more of the following actions:

(1) Obtain a court order enjoining, or an order of the International

Trade Commission under section 337 of the Tariff Act of 1930 excluding,

importation of the articles.

(2) Furnish proof that the design involved is protected under this

chapter and that the importation of the articles would infringe the

rights in the design under this chapter.

(3) Post a surety bond for any injury that may result if the detention

or exclusion of the articles proves to be unjustified.

(b) Seizure and Forfeiture. Articles imported in violation of the rights

set forth in section 1308 are subject to seizure and forfeiture in the

same manner as property imported in violation of the customs laws. Any

such forfeited articles shall be destroyed as directed by the Secretary

of the Treasury or the court, as the case may be, except that the

articles may be returned to the country of export whenever it is shown

to the satisfaction of the Secretary of the Treasury that the importer

had no reasonable grounds for believing that his or her acts constituted

a violation of the law.

Section 1329. Relation to design patent law

The issuance of a design patent under title 35, United States Code, for

an original design for an article of manufacture shall terminate any

protection of the original design under this chapter.

Section 1330. Common law and other rights unaffected

Nothing in this chapter shall annul or limit-

(1) common law or other rights or remedies, if any, available to or held

by any person with respect to a design which has not been registered

under this chapter; or

(2) any right under the trademark laws or any right protected against

unfair competition.

Section 1331. Administrator; Office of the Administrator

In this chapter, the "Administrator" is the Register of Copyrights, and

the "Office of the Administrator" and the "Office" refer to the

Copyright Office of the Library of Congress.

Section 1332. No retroactive effect

Protection under this chapter shall not be available for any design that

has been made public under section 1310(b) before the effective date of

this chapter.

Chapter 13 Endnotes

1 In 1998, the Vessel Hull Design Protection Act added chapter 13,

entitled "Protection of Original Designs," to title 17. Pub. L. No.

105-304, 112 Stat. 2860, 2905. The Vessel Hull Design Protection Act is

title V of the Digital Millennium Copyright Act, Pub. L. No. 105-304,

112 Stat. 2860.

2 The Satellite Home Viewer Improvement Act of 1999 amended section

1301(b)(3) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I

at 1501A-593.

3 In 1999, section 1302(5) was amended to substitute "2 years" in lieu

of "1 year." Pub. L. No. 106-44, 113 Stat. 221, 222.

4 The Satellite Home Viewer Improvement Act of 1999 amended section

1313(c) by adding at the end thereof the last sentence, which begins

"Costs of the cancellation procedure." Pub. L. No. 106-113, 113 Stat.

1501, app. I at 1501A-594.

5 In 1999, section 1320 was amended to change the spelling in the

heading of subsection (c) from "acknowledgement" to "acknowledgment."

Pub. L. No. 106-44, 113 Stat. 221, 222.

Appendix I. Transitional and Supplementary Provisions of the

Copyright Act of 1976 [1]

Sec. 102.